Berney v. Rountree Olds-Cadillac Co., Inc.

763 So. 2d 799, 2000 La. App. LEXIS 1662, 2000 WL 792414
CourtLouisiana Court of Appeal
DecidedJune 21, 2000
Docket33,388-CA
StatusPublished
Cited by14 cases

This text of 763 So. 2d 799 (Berney v. Rountree Olds-Cadillac Co., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berney v. Rountree Olds-Cadillac Co., Inc., 763 So. 2d 799, 2000 La. App. LEXIS 1662, 2000 WL 792414 (La. Ct. App. 2000).

Opinion

763 So.2d 799 (2000)

Bobby G. BERNEY, Plaintiff-Appellee,
v.
ROUNTREE OLDS-CADILLAC CO., INC., Defendant-Appellant.

No. 33,388-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 2000.

*801 Bobby G. Berney, in proper person.

Weems, Schimpf, Hayter, Gilsoul & Carmouche by Kenneth P. Haines, Brian D. Landry, Shreveport, Counsel for Appellee.

James L. Fortson, Shreveport, Counsel for Amicus Curiae, Starla Berney.

Before DREW, WILLIAMS and KOSTELKA, JJ.

DREW, J.

Bobby G. Berney sued Rountree Olds-Cadillac Co., Inc., d/b/a Car Central for a return of the purchase price of a vehicle along with the cost of the extended service agreement, actual damages, interest, reasonable attorney's fees and court costs. Rountree appealed the trial court judgment rescinding the sale and ordering Rountree to repay to Berney the purchase price, fees, taxes and the cost of the extended warranty. For the following reasons, the judgment is amended, and as amended, affirmed.

FACTUAL BACKGROUND AND TESTIMONY

On April 14, 1998, Berney bought a used 1995 Chevrolet S-10 Blazer with 49,148 miles on it for $14,900 plus tax, title, and registration along with an extended service agreement at an additional cost of $1,495. Berney made a cash payment of $4,000, received a trade-in allowance of $2,250 and financed the rest with Bank One. Berney's petition alleged the problems were air leakage from the tires due to corroded rims, check engine light (CEL) remaining on, corroded exhaust pipe, loose vibrating right radio speaker, and a brake problem. Seeking to have the CEL corrected, Berney alleged that he had the vehicle repaired on the following dates: April 22, 1998; May 11, 1998; May 13 -May 21, 1998; June 17—June 22, 1998; June 28, 1998; and July 1 though July 10, 1998. The CEL continued to illuminate, and the petition was filed on October 6, 1998.

Mrs. Berney testified that her husband bought the vehicle on April 14, 1998, for use in his business. They experienced *802 continuous problems with the Blazer beginning shortly after the purchase. When the CEL illuminated on April 17, she called the salesman who told her to wait to bring the car in until Rountree received a handle ordered to replace a broken one. The history of the vehicle showed that the car was taken in for repairs on April 22; the EGR selenoid and the # 2 02 sensor were replaced at that time. Other complaints on that day were leaking tires and a rattle in the dash. Mrs. Berney testified she believed the car was in the shop just that day. On May 11, the vehicle was again taken for service for the CEL, leaking tires and the rattle in the dash. On May 13, the CEL light was still on and the tires still leaked. Rountree supplied a free rental car and kept the Blazer until May 21.

On June 1, they returned the car to Rountree for leaking tires, detached handle and a cracked muffler. Rountree again supplied a free rental car and kept the Blazer from June 1 until June 11. On June 12, the CEL was back on and Mrs. Berney reported the problem immediately. They took the car in on June 17 and Rountree kept the vehicle until June 22. The Rountree invoice states that for the air leakage, the tires were removed and corrosion was cleaned from the rims. For the CEL, the dealer replaced the bank 1 sensor 1, cleaned carbon from the EGR valve and intake and reprogrammed the PCM. To correct the rattle, Rountree tightened all dash mounting screws and reattached both front door trim panels. A muffler was also installed. The Berneys were not charged for the service.

On June 25, the CEL came on and the Berneys contacted a representative of Rountree, which instructed them to bring in the vehicle after the weekend. Rountree kept the car from July 1 until July 10 and supplied a free rental car. Again on July 13, the Berneys took the car in for the CEL problems. Rountree kept the car until July 15 and did not supply a rental car. The manager told Mrs. Berney they had driven the car 200 miles, that they could not get the CEL to come on and that they could not fix it. Mrs. Berney further stated that the manager refused her request that Car Central take the car back.

According to Mrs. Berney, after Rountree admitted they could not fix the vehicle, the Berneys took the Blazer to Courtesy Chevrolet on July 21 for diagnostics at a cost of $191.96 (The receipt in the record is for $91.96). On August 19, 1998, the Berneys took the Blazer to Red River Motor Company for the repairs recommended by Courtesy. At a charge of $220.53, Red River replaced the spark plugs, replaced the PCV valve, removed and inspected o-rings, replaced the in-line fuel filter and, to correct the CEL, replaced an oxygen sensor. On November 19, the vehicle was taken to Red River for general maintenance at a cost of $124.18. On February 23, 1999, they again took the vehicle to Red River for concerns about the CEL, a state inspection and a door lock. Red River cleared the codes for the 02 sensor and checked the tire pressure. On March 2, the Berneys again took the car to Red River with complaints about the CEL. Red River replaced the Bank 1 02 sensor at no cost. On April 13, 1999, the Berneys had diagnostics run by Red River at a cost of $62.55 for continuing problems with the CEL. The problem was determined to be too much fuel which caused the oxygen sensor to read rich. Red River estimated the cost of eliminating the problem was $695.00. At trial, Mrs. Berney stated the CEL continued to illuminate intermittently. Mrs. Berney acknowledged that Rountree had not charged for the work done nor for any of the rental cars supplied.

Mr. Berney identified the invoice which contained the purchase price of the Blazer along with the $1,495 cost of the extended warranty he also purchased. Berney testified there was absolutely no discussion about his waiving the warranty on the vehicle, although he knew he was purchasing *803 an extended warranty. After taking delivery of the Blazer after 5:00 p.m. Tuesday, Berney first noticed the check engine light on Thursday. Berney had continuing tire leakage problems from the first week he had the vehicle. Berney stated that on all but one occasion Rountree supplied a replacement vehicle when the Blazer was in its shop and that Rountree did not charge him for the work done. Berney testified that he would not have purchased the vehicle had he been aware of the various defects present. A 1998 Blazer Owner's Manuel was placed into evidence during Berney's testimony. Concerning the Service Engine Soon light, the manual stated:

A computer monitors operation of your fuel, ignition and emission control systems. This light should come on when the ignition is on, but the engine is not running, as a check to show you it is working. If it does not come on at all, have it fixed right away. If it stays on, or comes on while your are driving, the computer is indicating that you have a problem. You should take your vehicle in for service soon.

NOTICE: If you keep driving your vehicle with this light on, after awhile the emission controls won't work as well, your fuel economy won't be as good and your engine may not run as smoothly. This could lead to costly repairs not covered by your warranty.

Bubba Davis, an employee of Gateway Tire and Service, stated that all four tires were going down in pressure on February 10, 1999. One tire had a nail in it while another had trash inside the tire. Davis identified the $21.65 receipt which was the cost for breaking down the tires, installing a bead sealant and putting the tires back on the vehicle.

A technician for Red River, David C.

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Cite This Page — Counsel Stack

Bluebook (online)
763 So. 2d 799, 2000 La. App. LEXIS 1662, 2000 WL 792414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berney-v-rountree-olds-cadillac-co-inc-lactapp-2000.